'When A Person Can Be Considered As A History Sheeter': Madras HC Issues Directions [Read Judgment]

In a significant judgment delivered earlier this month, the Madurai bench of the Madras High Court identified material "inconsistencies" in the Police Standing Orders (PSO) and set out specific directions to the department on when a person can be considered a history-sheeter. While disposing of a batch of 30 writ petitions, seeking removal of the Petitioners' name from the history sheets for various reasons, the single Judge bench of Justice N. Seshasayee observed, "The need for effective policing (through history-sheeting), and, the arbitrary and malafide exercise of police power in history-sheeting (an individual), are conceptually different… This court, being adorned with the duty of being a Constitutional sentinel, has to balance between the right of an individual to his fundamental rights as against the interests of the society in maintaining law and order through effective preventive policing." It has therefore issued 10 directions to be followed by the Police personnel, in the matter of history-sheeting, until statutory alternatives for the same are notified. (The directions are reproduced at the end of this document) The judgment running into 67 pages broadly addresses the following three provisions of the PSO: PSO 747 In terms of PSO 747, History sheets shall be opened automatically at the time of conviction for persons convicted under certain specified offenses, and shall be retained for two years after release from jail. Finding this provision to be "least troublesome" the bench observed, "In terms of PSO 747, a convict alone will be history-sheeted, and will remain a history-sheeter during the term of his sentence plus two years. A citizen's right is protected here, since the sine qua non for history-sheeting is a judgment of a Court. This is akin to the National Registry of sexual offenders brought about under the Criminal Law Amendment Act, 2018. It has a legislative base with a judicial verdict as its backing." The two areas where the power to history-sheet is arbitrarily exercised, the court observed, are (i) while exercising power under PSO 749; and (ii) while retaining a history-sheeter under PSO 748(2). PSO 749 Under PSO 749(1) a history sheet can be opened for Suspects, but it presumes every person who is convicted even once for any offence under the IPC as a suspect. Specifically, PSO 749(1)(a) empowers opening of history sheet against persons once convicted under any Section of the Indian Penal Code and are considered to be likely to commit crime; and PSO 749(1)(b) empowers opening of history sheet against persons, not convicted, but believed to be addicted to crime. On a perusal of these provisions the bench noted that PSO 749(1)(a) provides an "unwitting opportunity" to the police official to believe that, 'once an offender is always an offender'. Deprecating such an assumption the bench observed, "There cannot be a greater instance of arbitrary discrimination and insult to the Constitution than to prescribe a presumption that a former convict is an eternal suspect. Preventive policing cannot extend to the extent of treating the entire society as suspects, and hence it ought to filter those who are prone to commit a crime from the rest on an objective criterion for a special-watch through history-sheeting." The Court said, "If the need for involvement of a person in a crime after his initial conviction is eliminated from the line of consideration, that is to mean, if a person is not convicted or where not even a FIR is registered subsequent to his earlier conviction, it is difficult to conceive how a person is known to commit a crime, or believes to have committed a crime, or considered likely to commit a crime." It therefore concluded, "A provision that enables the policeman to presume that every convict shall be 'considered to be likely to commit a crime' is more an effort to amuse the spirit of Constitutionalism…The effect it instantly produces is that it renders the reformation theory which our criminal justice jurisprudence has not abandoned, instantly meaningless." Under PSO 749(1)(b), the bench observed, a non-convict is equated to a convict. Further it remarked that the use of expressions like 'believed to be addicted to' in its reference to commission of a crime, "leave interpretative challenges". "The definitional inadequacy in identifying a Suspect under PSO 749(1)(b)…is glaring. And, it throws the citizen to the mercy of the police power. This also has relevance in situations where the Court has acquitted a history-sheeter, but still grants to the SHO the luxury to be in a transcendental state to consider him as known or believed to, or likely to commit a crime, and to believe what is not." Shockingly, the court noted, PSO 749(1)(b) does not even make pendency of a FIR a criterion for history sheeting for identifying a suspect. "If a person were to ...

'When A Person Can Be Considered As A History Sheeter': Madras HC Issues Directions [Read Judgment]

Akshita Saxena

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